Category Archives: Records / Reporting

Update on the Future of the New EEO-1 Report

Not a week goes by without the question being asked, “What should I be doing right now to prepare to file the revised EEO-1 Report?”  And the answer is:

“We still don’t know.”

As you are aware, the EEOC moved the filing date for the revised EEO-1 from September 30, 2017 to March 31, 2018.  This was done to ostensibly give employers additional time to gather the compensation data that now must be reported along with the customary employee demographic information provided to the Joint Reporting Committee.

However, there has been substantial controversy and conflicting reports as to whether the compensation reporting provision of the revised EEO-1 will survive in its current iteration.  What we do know is that:

  • Legislation has been introduced that would prevent the EEOC from spending any money to implement the new report.  Note that this would not do away with the requirement to gather and submit the data.
  • President Trump has nominated two Republicans to the remaining vacant EEOC Commission slots.  Janet Dhillon has been nominated to also be EEOC Chairperson, and Daniel M. Gade was nominated to the last open position.  The nomination and appointment of Chair Dhillon and Commissioner Gade would swing the make-up of the leadership of the EEOC to majority Republican.  This would seem to indicate a willingness to address the concerns voiced by the employer community regarding the revised EEO-1.
  • The U.S. Chamber of Commerce has petitioned the Office of Management and Budget (OMB) to re-evaluate the “burden estimate” to comply with the data collection and reporting requirements of the revised form.
  • On August 3, 2017, Acting EEOC Chairperson, Victoria Lipnic, announced at the National Industry Liaison Group (NILG) conference in San Antonio, TX that she had contacted the new head of the Office of Information and Regulatory Affairs (OIRA), Neomi Rao.  The OIRA is the office within OMB charged with reviewing proposed regulations as well as their implementation.  Acting Chair Lipnic has not been shy about voicing her opinion that the compensation portion of the revised EEO-1 is a “poster child” of the excessive regulatory burden that the current administration vowed to overturn after the election.  Acting Chair Lipnic has requested that OIRA and OMB provide employers with an answer by August 31, 2017 regarding the future of the revised EEO-1.

Speculation at the conference was that while the March 31, 2018 filing date would remain unchanged, implementation of the compensation and reporting component would likely be delayed a year. 
 
So, what should employers be doing now?  Our recommendation is to continue to wait, at least until the end of August, to see if there is any guidance forthcoming from the EEOC or OMB.  At that point, if there is still no information regarding future of the compensation component, then employers should begin to evaluate what will need to be done to file the revised EEO-1, including the compensation component, by March 31, 2018.   This should be accomplished, keeping in mind that between August 31, 2017 and March 31, 2018, much can change.

Disability Self-ID Form Renewed for Three Years

On January 31, 2017, the Office of Management and Budget (OMB) approved the renewal of the Voluntary Self-Identification of Disability Form for an additional three (3) years.  The form now expires on January 31, 2020.

Although no changes were made to the form, contractors must immediately begin using the form with the expiration date “1/31/2020” in the top-right corner.

Depending on your organization, you may need to update your career site or applicant tracking system where the forms exist, as well as update all paper copies of the form.  To avoid any confusion, we recommend discarding all copies of the prior version.

Be advised that because the Self-ID form is an OMB-approved form, its content cannot be altered or changed.

For copies of the renewed form in English and other languages, please visit:

https://www.dol.gov/ofccp/regs/compliance/sec503/Self_ID_Forms/SelfIDForms.htm?utm_campaign=reengage2B&utm_medium=email&utm_source=govdelivery

If you would like to discuss the Self-ID form in more detail as it pertains to your specific organization, please do not hesitate to contact us.

New Form I-9 in Effect

In November 2016, the U.S. Citizen and Immigration Services (USCIS) revealed a revised version of the Form I-9.  As of January 22, 2017, all employers must begin using this new version (dated 11/14/2016 in the bottom-left corner).

The most prominent change to the new Form is that it is now available as both a traditional paper version and also as an interactive, fillable PDF document, allowing it to be completed with software found on most computers.  Being dubbed as a “Smart” document, the new PDF version has features such as drop-down menus and real-time error messages that will help both employers and employees properly complete the new Form.

Other minor changes include:

  • In Section 1, employees only need to provide “Other Last  Names Used (if any)” rather than “All Names Used.”
  • There are additional spaces to enter multiple preparers and translators. If you are using the “Smart” version, additional spaces will appear if you check the box indicating that more than one preparer or translator was used. If you are using the traditional paper version, the extra spaces are located on the Form I-9 Supplement.
  • In Section 2, there is now a dedicated space for “Additional Information,” eliminating the need to write comments and other miscellaneous information in the margins of the form as in the past.

To avoid any confusion, copies of the prior version, dated 03/08/2013, should be discarded.  The new I-9 has an expiration date of August 31, 2019.  Failure to use the revised Form may result in recently-increased penalties, which range from $216 to $2,156 for paperwork violations.

Be advised that even if your company uses E-Verify, all employers must use the Form I-9.  Utilizing E-Verify does not remove an employer’s obligation to complete the Form.

For copies of all versions of the Form as well as instructions on how to complete them, please visit:

https://www.uscis.gov/i-9

If you would like to discuss the new Form I-9 or E-Verify in more detail as they each apply to your specific organization, please do not hesitate to contact us.

Strategic Considerations in Complying with the OFCCP’s New 503/VEVRAA Regulations – Job Groups

Recent changes to the Section 503 and VEVRAA regulations, along with the new itemized listing for OFCCP compliance reviews, require consideration of a number of strategic matters affecting how contractors choose to position themselves before and after receiving a scheduling letter.  Some of the key considerations include the creation and retention of records; the provision of those records to the OFCCP; and the structure of job groups in current AAPs.  These considerations are set forth in more detail below.

Job Groups

As discussed above, the OFCCP’s request for the mandatory eight (8) employee-level data points provides the Agency with limited alternatives for conducting preliminary data analysis of compensation.  The two probable groupings are EEO-1 category or AAP job group.  Even if the preliminary analysis is based on EEO-1 category and there is a follow-up request for the optional data, a secondary level of review using some form of mini-regression will likely drill down to a deeper level where AAP job group becomes the grouping for comparing compensation.

Continue reading Strategic Considerations in Complying with the OFCCP’s New 503/VEVRAA Regulations – Job Groups

Strategic Considerations in Complying with the OFCCP’s New 503/VEVRAA Regulations – Compensation Data

Recent changes to the Section 503 and VEVRAA regulations, along with the new itemized listing for OFCCP compliance reviews, require consideration of a number of strategic matters affecting how contractors choose to position themselves before and after receiving a scheduling letter.  Some of the key considerations include the creation and retention of records; the provision of those records to the OFCCP; and the structure of job groups in current AAPs.  These considerations are set forth in more detail below. 

Compensation Data

Item 19 of the Scheduling Letter requiring the provision of compensation data is substantially expanded from the prior version.  Item 19 now requires submission of “employee level” (e.g. individualized) compensation data.  This data includes: 

  • Employee ID or name
  • Gender
  • Race/ethnicity
  • Hire date
  • Job title
  • EEO-1 category
  • Job Group
  • Compensation 

Continue reading Strategic Considerations in Complying with the OFCCP’s New 503/VEVRAA Regulations – Compensation Data

New Round of OFCCP Corporate Scheduling Announcement Letters

CSALs mailed out November 10, 2014

The OFCCP will be sending out approximately 2,500 new Corporate Scheduling Announcement Letters (CSAL ).  The CSAL letter is not the scheduling notice.  Rather, the letter provides advance notice to the location referenced in the letter that it will likely be scheduled for an OFCCP compliance review.   

OFCCP will send the letter to the facility locations.  Any location receiving a CSAL notice should, ensure that their AAP is written, personnel activity gathered and analyzed; compensation analyses completed; and any disparity or negative results in adverse impact or compensation identified in the analyses are explained.    Continue reading New Round of OFCCP Corporate Scheduling Announcement Letters

Record Retention – Self-ID Forms

In response to questions regarding demonstrated compliance with the 503 requirement regarding retention of self-id forms, the OFCCP has published the following FAQ: 

4.   What information must a contractor store in order to demonstrate its compliance with the requirement to invite voluntary self-identification of disability from applicants and employees? 

Regarding paper invitations – a contractor that invites voluntary self-identification of disability by using paper copies of the OFCCP self-identification form must retain either the hard copies of the completed self-identification forms, or electronic copies (e.g., pdf, scanned, etc.) of the completed paper forms. The contractor must also retain any log, spreadsheet, or database that it may have developed to record the data from the self-identification forms. Continue reading Record Retention – Self-ID Forms

New VETS-4212 Report and Revised Veterans Post-Offer Self-ID

Beginning in 2015, employers will no longer be filing VETS-100 or VETS-100A reports. Consistent with OFCCP’s deletion of Section 250 of the VEVRAA regulations and implementation of the new regulations, the Veterans’ Employment and Training Service (VETS) has eliminated the VETS-100 form, which applied only to contracts entered into prior to December 1, 2003.  

Additionally, VETS has revised and renamed the VETS-100A report. The new report will be called the “VETS-4212,” named after the U.S. Code Section where the VEVRAA regulations are published.  The most notable difference between the VETS-100A and the new VETS-4212 report is that employers will no longer be required to collect or report data on the specific categories of protected veterans.  Instead, employers will simply report the aggregate number of all protected veterans within each EEO category.  Continue reading New VETS-4212 Report and Revised Veterans Post-Offer Self-ID

Expansion of OFCCP Compensation Data Requests

With the new OFCCP scheduling letter mandating the submission of employee-level data, the Agency is now requiring eight (8) different items of individual data. These include gender, race/ethnicity, hire date, job title, EEO-1 category, job group, compensation (including additions to base pay) and by default, some type of employee identifier.  In addition, the Agency is suggesting that contractors provide six (6) additional items of individual data such as education, past experience, duty location, performance ratings, department or function, and salary level/band/range/grade.  Continue reading Expansion of OFCCP Compensation Data Requests

OFCCP’s New FAQs on “Employer – Employee Relationship”

Has The OFCCP Set The Stage to Claim That Temporaries Are “Employees” For Affirmative Action Purposes?

A practice amongst federal contractors and non-contractors is the use of Temporary Staffing Firms (TSFs) to recruit and place temporary employees who may ultimately end up being hired by the contractor into entry-level positions. This practice often follows this scenario.  The contractor has large numbers of entry-level employees in a manufacturing, healthcare or service industry setting who have a high level of turnover.  The contractor has a relationship with a TSF to find and place temporary employees (temps).  The contractor has agreed to keep the temps on the TSF’s payroll for some period of time, such as 90-180 days before they might be eligible for hire.  After meeting the required timeframe, the contractor has the option of converting the temps from the payroll of the TSF to its own payroll (by hiring them).  The process of conversion may be through a number of different avenues such as 1) “anointment” where the contractor chooses who becomes an employee; or 2) having the temps bid on an open position.  Continue reading OFCCP’s New FAQs on “Employer – Employee Relationship”